P. v. Ling

Filed 10/30/06 P. v. Ling CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from an order by the Superior Court of Los Angeles County, Teri Schwartz, Judge. Affirmed.

Law Offices of John R. Blanchard and John R. Blanchard for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Herbert S. Tetef and Tita Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.

_____________________________

INTRODUCTION

Defendant Mei Ling appeals from an order revoking and terminating her probation for failure to comply with the condition of probation that she obey all laws. Defendant contends that the prosecution presented no competent evidence that she stole anything from Costco, and therefore the trial court abused its discretion in finding that defendant had violated her probation. We disagree and affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

In a four-count amended information, the Los Angeles County District Attorney charged defendant with perjury (Pen. Code, § 118[1]), petty theft (§ 484, subd. (a)), second degree commercial burglary (§ 459), and petty theft with a prior (§ 666) arising from defendant’s actions involving Macy’s department stores. On February 18, 2003, pursuant to a negotiated plea, defendant pled guilty to petty theft with a prior and the remaining charges were dismissed. Pursuant to the terms of the negotiated plea, the trial court placed defendant on formal probation for three years, ordered her to perform 45 days of Caltrans work, pay various fines and fees, and obey all laws and further orders of the court.

On February 2, 2004, defendant was apprehended at a Costco store by Costco Loss Prevention Officer Jose Saavedra after she left the store with shirts, DVD’s and CD’s without going through checkout at the registers. The February 2, 2004 events at the Costco store are the primary basis for the trial court’s order at issue on this appeal.

Testimony and evidence at defendant’s probation violation hearing is summarized as follows: Officer Saavedra testified that on February 2, 2004, he noticed defendant inside the Costco store. She was pushing a shopping cart through the small appliances aisle. The items in her cart were two shirts, some DVD’s and CD’s, and her purse. He observed defendant rearranging the items in her cart. She placed the DVD’s and CD’s inside of her purse. She put the shirts on top of her purse, and then went up and back down the same aisle. He observed defendant then roll up the shirts and conceal them in her waistband under her sweater. She pushed the cart toward the audio/video aisle, and then zipped her purse, put it over her shoulder, left the cart and walked out of the store. He went outside the store, confronted defendant and escorted her back into the store to the main office. As Officer Saavedra was recovering the DVD’s and CD’s from defendant’s purse, he observed her try to discard the two shirts by dumping them behind a file cabinet. That same day, he verified that all of the items were Costco warehouse items by looking them up in the store’s computer files.[2]

Defendant testified that on February 2, 2004, she entered the Costco store with a couple of CD’s, DVD’s and two Hawaiian shirts. She previously purchased the DVD’s at a swap meet. She found the two Hawaiian shirts at the store’s film drop-off counter outside of the store and took them. When she entered the store, Costco personnel put orange stickers on the shirts. Defendant acknowledged that she hid the shirts at her waistline under her jacket and then walked out of the store. She also acknowledged that she put the shirts behind the file cabinet in the room where Officer Saavedra had brought her after confronting her. Defendant expressly denied shoplifting any of the items.

After defendant’s arrest and the subsequent filing of a criminal action against her, the trial court revoked defendant’s probation on March 17, 2004, released her on her own recognizance, and set the case for a probation violation hearing.

Prior to the probation violation hearing, the preliminary hearing on defendant’s new case was held on November 4, 2004. The trial court held defendant to answer, finding sufficient cause to believe defendant was guilty of petty theft with a prior (§ 666) (based on the February 2, 2004 Costco events) and grand theft by embezzlement (§ 487, subd. (a)) (not related to the Costco events).

The probation violation hearing was held on May 2 and May 11, 2005. The trial court found defendant in violation of the condition of her probation that she obey all laws. In a June 2005 sentencing hearing, the trial court sentenced defendant to the midterm of two years in state prison.

DISCUSSION

Section 1203.2, subdivision (a), authorizes a court to revoke and terminate “probation if the interests of justice so require and the court, in its judgment, has reason to believe from the report of the probation officer or otherwise that the person has violated any of the conditions of his or her probation, has become abandoned to improper associates or a vicious life, or has subsequently committed other offenses, regardless whether he or she has been prosecuted for such offenses.” A court is not required to determine whether the probationer is guilty or innocent of a crime, but rather whether a violation of the terms of probation has occurred and, if so, whether it would be appropriate to allow the probationer to continue to retain his or her conditional liberty. (Lucido v. Superior Court (1990) 51 Cal.3d 335, 348.) The facts supporting revocation need only be proved by a preponderance of the evidence. (People v. Rodriguez (1990) 51 Cal.3d 437, 441.) When the evidence is conflicting, the preponderance of the evidence standard is met if the fact finder determines which evidence is credible and the factual finding made based on that evidence is supported by substantial evidence. (People v. Lopez (1997) 52 Cal.App.4th 233, 250.)

The trial court has broad discretion in determining whether the probationer has violated the conditions of his or her probation. (People v. Rodriguez, supra, 51 Cal.3d at p. 443.) Probation revocation decisions are reviewed under an abuse of discretion standard. (Ibid.) A trial court’s exercise of discretion “‘will not be disturbed unless it appears that the resulting injury is sufficiently grave to manifest a miscarriage of justice [citations]. In other words, discretion is abused only if the court exceeds the bounds of reason, all of the circumstances being considered.’” (People v. Michael W. (1995) 32 Cal.App.4th 1111, 1120.) There is no abuse of discretion if the evidence shows the probationer violated the terms and conditions of his or her probation. (People v. Hawkins (1974) 44 Cal.App.3d 958, 968.)

In the instant case, the trial court found defendant in violation of the condition of probation that she obey all laws. The finding was based primarily on evidence that defendant stole merchandise from a Costco store. At the probation violation hearing on May 11, 2005, the trial court stated: “I am going to find the defendant in violation of probation. I find that she violated the law in a number of ways. No. 1, she entered the store with the intent to steal. No. 2, I do believe the testimony of Saavedra that she did, in fact, take the property that he observed her take and attempted to leave the store with it. She then tried to discard the property, which is in my opinion consciousness of guilt and lends a great deal of credence to Saavedra’s testimony.”

The trial court clarified further that the violation is clear on the basis of defendant’s theft of the shirts, without even considering the DVD’s and CD’s. The trial court stated: “I don’t accept [defendant’s] testimony that she took the shirts and found them from outside and brought them in to return them or exchange them or any of that. I believe what Saavedra testified to . . . . I believe what he testified to was truthful and that his observations were, in fact, correct. And [defendant’s] conduct subsequent to being apprehended corroborates that testimony.” The trial court also thus made it clear that it found Officer Saavedra’s testimony credible. On appeal, we may not reevaluate the credibility of witnesses. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)

The record contains ample evidence for the trial court to find, by a preponderance of the evidence, that defendant had violated laws and thus, violated the terms of her probation. The credible testimony of only one witness, here Officer Saavedra, was sufficient to prove defendant had the shirts in a shopping cart inside the Costco store, concealed them in her clothes, and left the store without paying for them. (People v. Scott (1978) 21 Cal.3d 284, 296.) As the trial court noted, the fact that defendant attempted to discard the shirts behind the file cabinet showed consciousness of guilt, also supporting the trial court’s finding. (See People v. Earp (1999) 20 Cal.4th 826, 889.)

We conclude that the trial court’s finding that defendant violated laws is supported by substantial evidence, and thus, has been proven by a preponderance of the evidence. (People v. Rodriguez, supra, 51 Cal.3d at pp. 442-443.) Accordingly, there was no abuse of discretion. (People v. Michael W. (1995) 32 Cal.App.4th 1111, 1120; People v. Hawkins (1975) 44 Cal.App.3d 958, 968.) The trial court properly found that defendant was in violation of her probation.

The order is affirmed.

NOT TO BE PUBLISHED

JACKSON, J.*

We concur:

MALLANO, Acting P. J.

VOGEL, J.

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by El Cajon Property line Lawyers.

[1] All further statutory references are to the Penal Code, unless otherwise stated.

[2] A later scan of the bar codes on the DVD’s and CD’s showed that two of the items were not part of Costco’s current inventory.

* Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.